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Tuesday, June 21, 2011

Due Process and Blasphemy Law

Perhaps the most interesting legal development through the 18th Amendment to the constitution of Pakistan was the introduction of Article 10-A, which reads: “For the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.” This article exists under the unceremonious heading of ‘Right to fair trial’ but is nothing less than a revolutionary concept for a country like ours where liberty has so often been the victim of expediency, state oppression and the tyranny of the permanent majority. What it does — and, unfortunately, this is not appreciated enough by our jurists — is create within our constitution the idea of substantive due process above and beyond procedural due process that its heading seems to betray.

The history of due process is rooted in the Magna Carta in English jurisprudence and, subsequently, in the American jurisprudence surrounding the 5th and 14th amendments to the US constitution. The 14th Amendment, for example, states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The US Supreme Court has interpreted the 14th Amendment as having created a constitutional natural law that would be available as a protection against the states and not just the federal government (which was the position under the 5th Amendment). In other cases, the due process clause has been used as a kind of residuary clause that protects all implied and rational rights to liberty, including the right to privacy, which otherwise finds no constitutional basis. For more on this see Griswold vs. Connecticut, 381 US 479 (1965) and Roe vs. Wade, 410 US 113 (1973). Substantive due process has thus emerged as the surest safeguard against totalitarianism of the state. Furthermore, in Treatise on Constitutional Law: Substance and Procedure (the third edition) by Ronald D Rotunda and John E Novak, on page no 2 S17, it is stated, “This substantive due process may protect certain fundamental rights or void arbitrary limitations on individual freedom of action.” This is the only interpretation of due process as stand alone from fair trial that we can have in our constitution as well.

By incorporating due process in the Pakistani constitution, the framers of the 18th Amendment have further strengthened the concept of fundamental rights and have placed these above all other articles. Rationally, now a proper constitutional challenge is available against the blasphemy laws, i.e. 295-B, 295-C, 298-B and 298-C of the Pakistan Penal Code. all of which may well be deemed patently unconstitutional if our courts apply the constitution rationally and honestly. In these circumstances, the amendment bill proposed by the Jinnah Institute and tabled by its president Sherry Rehman becomes the irreducible minimum constitutional requirement. The constitutional fundamental rights of Aasia Bibi (and others accused of blasphemy) such as right to life, fair trial, religious freedom, freedom of expression and freedom of conscience are arguably part of the substantive due process with the sole purpose of protecting her from the tyranny of the state. More importantly, the debate around blasphemy laws has ceased to be a religious issue but is a purely constitutional issue. There is no room anymore for having laws such as the blasphemy law since the fundamental rights, especially after the inclusion of the aforesaid 10-A, have become inviolate and above all other articles of the constitution, including Articles 2 and 2A. By placing constitutional liberty over ideology, the framers have, with one clear blow, undone the legal fiction of the ideology of Pakistan.

The Private Members Bill by Sherry Rehman seeks to limit the maximum sentence under 295-C to 10 years and the maximum sentence under 295-B to five years. It also introduces the element of mens rea in Article 295-C, 298-A and 298-B, though curiously it stops short of suggesting amendments to 298-C, another draconian and community-specific law, which is as unreasonable as any of these other provisions. The bill also seeks to introduce a punitive clause for false and frivolous accusations under these laws. Furthermore, by introducing the requirement of a warrant for arrest of those accused of blasphemy, the bill has tried to ensure procedural due process, i.e. notice, fair hearing and fair trial, to these provisions. These changes would make these laws much more reasonable and acceptable. However, if this bill is not passed, the superior judiciary in Pakistan would have no choice but to strike down these laws or admit that it is not truly independent.

The challenge that may be mounted against the blasphemy laws in the present form is both on procedural and substantive grounds. It denies not only freedom of action but the right to fair trial as well. In our present law, even the offensive phrases cannot be reproduced or defended and there is no consensus on what constitutes blasphemy, for which recourse is taken to religious scholars who are in any event unsure of their position and as such irrelevant to all constitutional issues. If Pakistan’s judiciary were truly fair, impartial and independent, it would strike down these laws. The only way the blasphemy laws can be retained in some form is if Sherry Rehman’s bill is passed. It is for this reason that our priestly class needs to take a long hard look at the amendment bill, which represents a compromise position and a way out of the morass.

The writer is a lawyer. He also blogs at http://pakteahouse.wordpress.com and can be reached at yasser.hamdani@gmail.com